State Records Committee Appeal Decision 2010-23

By this appeal, Petitioner, the Salt Lake Tribune (“Tribune”), seeks text and e-mail messages from Respondent, the Utah Department of Transportation (“UDOT”).

FACTS

In a letter dated September 27, 2010, Robert Gehrke, a reporter with the Tribune, made a request to UDOT pursuant to the Utah Government Records Access and Management Act (“GRAMA”) for “copies of correspondence, meeting minutes or other records since Aug 1, 2009 involving UDOT employees and the following parties: Wadsworth Bros. Construction, R.L. Wadsworth Construction, or Guy Wadsworth.” Mr. Gehrke also stated in his letter that he did not want technical bid documents for the Interstate 15 CORE project, but instead was “interested in correspondence relating to that contract.”

In response to the request, UDOT provided 31 pages of records, which included one text message it had gathered as part of an investigation relating to the Interstate 15 reconstruction contract. UDOT also indicated with their response that there were other text and e-mail messages that had been withheld on the grounds that they were personal communications not subject to release pursuant to Utah Code Ann. §§ 63G-2-103(22)(b)(i) or 63G-2-302(2)(a) and (d).

In a letter dated October 5, 2010, and signed by Mr. Gehrke, the Tribune appealed the decision to not disclose the text and e-mail messages to John Njord, Executive Director of UDOT. In the letter, Mr. Gehrke stated that the messages were public because it was “doubtful that the UDOT employee in question had a realistic expectation of privacy when the messages at issue were sent from a taxpayer-funded phone, through a taxpayer-funded provider and from a taxpayer-funded computer presumably though the state computer network.” Mr. Njord denied the Tribune’s appeal in a letter dated October 11, 2010, stating that he agreed with the initial determination that the messages “represent personal communications not subject to release under GRAMA.”

Mr. Gehrke filed an appeal on behalf of the Tribune with the Utah State Record Committee (“Committee”). Guy Wadsworth and the UDOT employee whose messages are the subject of the Tribune’s request also participated in the proceedings as third parties, pursuant to Utah Code Ann. § 63G-2-403(6). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on December 9, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and –305.

2. “Record” means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics: (i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. Utah Code Ann. § 63G-2-103(22)(a).

3. “Record” does not mean a personal note or personal communication prepared or received by an employee or officer of a governmental entity in the employee’s or officer’s private capacity. Utah Code Ann. § 63G-2-103(22)(b)(i).

4. UDOT argued that the text and e-mail messages had been withheld on the grounds that they were personal communications not subject to release pursuant to Utah Code Ann. §§ 63G-2-103(22)(b)(i) or 63G-2-302(2)(a) and (d). The female UDOT employee had used her state issued cell phone to receive and send text messages with an individual affiliated with Wadsworth Bros. Construction and R.L. Wadsworth Construction. UDOT claimed that the messages were strictly personal and were not related to the UDOT employee’s duties with UDOT.

5. After reviewing in camera the disputed messages, the Committee agrees with UDOT’s argument that the messages were personal communications prepared or received by the UDOT employee in her private capacity. Accordingly, the messages are not considered records pursuant to Utah Code Ann. § 63G-2-103(22)(b)(i) and cannot be disclosed through a GRAMA request.

6. The Committee was not persuaded by the Tribune’s argument that an employee of a governmental entity has no expectation of privacy when the messages at issue were sent from a taxpayer-funded phone, through a taxpayer-funded provider or from a taxpayer-funded computer, presumably though the state computer network. While the employee may not have an expectation of privacy to having a governmental entity review personal communications “prepared, owned, received or retained by a governmental entity,” the language of Utah Code Ann. § 63G-2-103(22)(b)(i) makes it clear that there is an expectation that personal communications prepared in a private capacity will not become public records.

7. Additionally, because of the personal nature of the messages, these messages are not responsive to the Tribune’s request for “correspondence relating to” the Interstate 15 reconstruction project. Therefore, the messages are outside of the Tribune’s GRAMA request and UDOT had no obligation to disclose the messages.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Robert Gehrke/Salt Lake Tribune is denied.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.